Committee Comments

Rule 10.2 provides for an implied waiver where a defendant, after learning of grounds for a change in place of trial, allows a proceeding to commence or to continue without objection. There appear to be no Alabama cases regarding waiver of a defendant’s right to a request change of venue. But see Cook v. State, 269 Ala. 646, 115 So. 2d 101 (1959), which suggests that such a waiver can be found. In Green v. State, 73 Ala. 26 (1882), the Alabama Supreme Court recognized that one may waive and does waive his constitutional rights if he fails to assert or claim them at the appropriate time and place and according to the established course of procedure. Thus, it is clear that the right granted under Rule 10.2 may be waived as well, if knowingly and intelligently don3.

In no event may a party let a proceeding continue in the hope of prevailing but, upon losing, assert a challenge to the proceeding.

Rule 10.2(b) is consistent with Alabama case law. In Baker v. State, 209 Ala. 142, 95 So. 467 (1923), the Alabama Supreme Court held that an application for change of venue may be made alter conviction, upon new trial being granted, as early as practicable before the next trial.